Randolph K. Reeves was charged with two counts of felony murder for the sexual assault and murder of Janet Mesner and Victoria Lamm, both of Lincoln, Nebraska. Under Nebraska law, felony murder is a form of first-degree murder committed in the perpetration of certain felonies, including sexual assault. A conviction for felony murder renders a defendant eligible for the death penalty; however the jury does not charge the defendant because capital sentencing is a judicial function. In his trial Reeves requested the jury be given other options rather than just felony murder. The trial court judge denied Reeves's motion and he was subsequently convicted on both counts. A three-judge panel sentenced Reeves to death. The Nebraska Supreme Court affirmed his convictions and sentences. After exhausting his state remedies, Reeves filed a federal habeas corpus petition that the trial court's failure to give the requested instructions was unconstitutional. The District Court granted relief on an unrelated due process claim. The Court of Appeals rejected the lower court's decision, but held that a constitutional error had occurred.

Question

Does the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment require jurors in capital cases to be given an option to convict a defendant of offenses that are not lesser-included offenses of the crime charged? Did the Nebraska trial court err in failing to give the requested jury instructions?

No and no. The Court held 8-1, in an opinion by Justice Clarence Thomas, that (1) in capital cases, a state trial court is not required, under the Constitution, to instruct the jury on offenses that are not lesser included offenses of the charged crime under state law; and (2) the Nebraska trial court did not commit federal constitutional error in failing to give the requested jury instructions as to second-degree murder and manslaughter.

This case presents the question of whether a defendant in a potential capital case has a constitutional right to effectively charge himself with crimes not charged by the prosecution and which are not lesser included offenses of the crimes that were charged by the prosecution, and to have his jury instructed on those offenses.

In Beck v. Alabama, this Court had said... said that if a lesser included offense exists under State law and is supported by the evidence, that an instruction on that lesser included offense must be given at the request of the defendant.

Here, Respondent Reeves was charged with two counts of felony murder.

Specifically, he was charged with killing two women in the perpetration or attempted perpetration of a first degree sexual assault.

The Respondent did not ask to have his jury instructed on the lesser included offense of first degree sexual assault, which does exist as a lesser included offense under Nebraska law.

Instead, the Respondent asked to have his jury instructed on second degree murder and manslaughter.

For 100 years, the Nebraska Supreme Court has clearly and consistently held that second degree murder and manslaughter are not lesser included offenses of felony murder in the State of Nebraska.

Unknown Speaker: Was... was the manslaughter that he asked for the instruction on involuntary manslaughter, in other words killing in the course of committing an unlawful act?

Mr. Stenberg: I don't recall, Your Honor, if the requested instruction was... was specific as to which of the types that it was.

Unknown Speaker: Well, would he have been correct if... if he had asked for that?

Isn't that a lesser included of... of the felony murder charged here?

Mr. Stenberg: No, Your Honor, it is not, for a couple of reasons.

Of course, for 100 years, the Nebraska Supreme Court has said that it's not.

Unknown Speaker: I know.

They have said that.

I don't understand why--

Mr. Stenberg: Well, the... there's two... there's really two answers.

One is the more general answer that has been given by the Nebraska Supreme Court over the years, which is simply to say that... that there are two different intents involved.

Under a felony murder, the intent involved looks at the intent to commit the underlying felony.

In this case, the first degree sexual assault.

Under first degree premeditated murder, second degree murder and manslaughter, the focus is on the intent to kill or the intent to commit the murder.

In answering your question, Your Honor, we have to ask what unlawful act are we referring to.

If we are... are referring to the unlawful act alleged by the prosecutor, namely, first degree sexual assault, then felony murder and manslaughter are identical offenses.

Unknown Speaker: --What... what about the... what about the lesser sexual... isn't there is... what is it... I guess second degree sexual assault, which... which does not involve penetration?

Mr. Stenberg: Yes, Your Honor.

In the case of second degree sexual assault, to answer your question, we need to think about what the purpose of our manslaughter statute is.

And the purpose of the manslaughter statute in the commission... killing in the commission of an unlawful act is that if someone is committing an unlawful act and someone is killed, that... that makes things worse.

Well, manslaughter is a class III felony under Nebraska law.

Second degree sexual assault is also a class III felony under Nebraska law.

So there would be no... there would never be a case where a prosecutor would... would need to charge manslaughter where you have a second degree sexual assault that you've already proved.

The killing... proving the killing adds nothing.

And so I think, logically then, second degree sexual--

Unknown Speaker: But he could... he... I mean, if he wanted to, he could charge it, couldn't he?

Mr. Stenberg: --We certainly could, Your Honor.

But the... but the concept of lesser--

Unknown Speaker: But if we assume that such a charge is possible under Nebraska law, then why isn't it a lesser included of the charge here?

Mr. Stenberg: --Well, of course, the prosecutor could have charged any number of crimes.

That doesn't make them lesser included offenses of some of these other crimes.

Unknown Speaker: No, but why isn't this... if... if... if he had... and I'm not sure that he clearly asked for this... but if he had said, I want an... an instruction on the lesser included offense of involuntary manslaughter and the unlawful act that I have in mind is, if I've got this right second... second degree sexual assault, why would that not have been a request for a lesser included... an instruction on a lesser included offense within the meaning of that?

Mr. Stenberg: Right.

Well, the Nebraska Supreme Court has not spoken to that specifically.

But my answer--

Unknown Speaker: No, but just... just as an analytical matter.

Mr. Stenberg: --Right, exactly.

Unknown Speaker: Why... why wouldn't it--

Mr. Stenberg: Well, as an analytical matter, I just... I don't think it fits the conceptual framework.

It simply makes no sense to... to have the prosecutor have to prove an additional element... in this case, a killing... in order to get the same punishment, a class III felony.

Unknown Speaker: --No, but you're saying the prosecutor might not have brought this as an original charge.

And I... I can see your point.

I understand the point that you're making.

But I don't... I guess I don't understand why, within the meaning of Beck, this involuntary manslaughter, when the... when the underlying offense is second degree sexual assault, is not, just as an analytical matter, a lesser included offense within the meaning of Beck.

There may be other reasons why Beck doesn't apply here, but I just want to get straight that if he had asked for it, that either would or would not have been a... a welltaken point.

Mr. Stenberg: Well--

Unknown Speaker: And it strikes me as though it would be a welltaken point.

Mr. Stenberg: --Well, I understood Beck, Your Honor, to rely on the State's own definition of lesser included offenses.

I mean, I... I thought Beck probably assumed that there... for purposes of Beck, that there was a Federal definition of what a lesser included offense is.

But assuming... assuming for the sake of argument that lesser included offense under Beck is... is a... is a... is a... a Federal term, subject to Federal definition, would this, just as an analytical matter, have been a lesser included offense?

Mr. Stenberg: No, Your Honor, it would not.

And, of course, first of all, I strongly disagree with the premise that... that... that the definition of lesser included offenses, under State law, is a Federal matter.

Unknown Speaker: No, you may be right.

Mr. Stenberg: But accepting that--

Unknown Speaker: But I'm... I'm just saying assume it for the sake of argument.

Mr. Stenberg: --Well, all... I guess all I can do is repeat... try and repeat, maybe in... in slightly different words, the same... the same point that I've made--

Unknown Speaker: General Stenberg, is one reason you're having difficulty on this point is that the Nebraska Supreme Court has never spoken to it?

Isn't that right?

Mr. Stenberg: --Well, the... the Nebraska Supreme Court has never analyzed it in that way.

They have clearly spoken to it many times.

And for 100 years, it's held.

Unknown Speaker: But they talked... the "it" was felony murder.

And they said there is no lesser included offense.

But did they ever confront this statute that says manslaughter, unintentionally... unintentionally killing while in the commission of an unlawful act, they... did they ever say yes, we looked at that, those words on their face, and that's not a lesser included offense?

I would add, Your Honor, here... and I think it... it's... it's relevant... is that... that even if it were a lesser included offense, that under the facts in evidence under Nebraska law, the charge would not have been given.

Unknown Speaker: Was... was there any request, General Stenberg, for such an... for such an instruction on second degree sexual... sexual offense, sexual assault?

Mr. Stenberg: I do not recall that they ever, at the time of the trial, identified second degree sexual assault.

If they had, Your Honor, second degree sexual assault still requires an intent to use force for sexual contact.

The... the only defenses in this case were insanity and diminished capacity, so that an intent could not be formed.

So that if... if the defendant could not have formed an intent to commit first degree sexual assault and therefore a felony murder, the same evidence proved that... that he did not have... would not have had the... the capability to form the intent to commit a sec... second degree sexual assault.

So either he was guilty of both felony murder and unlawful event manslaughter, or he was... he was innocent of both.

But under the evidence in this case, he could not have been acquitted of the greater and convicted of the lesser.

Even if you assume that second degree sexual assault--

Unknown Speaker: May... may I ask... and maybe it's the same question again... but what are the elements under Nebraska law of involuntary manslaughter?

Mr. Stenberg: --Your Honor, there's... the... the statute has two different ways of reaching that.

One is... is without malice... a killing without malice, upon a sudden quarrel.

Unknown Speaker: There must be a killing.

And what is the second element of it?

Mr. Stenberg: A killing without malice upon a sudden quarrel.

The... the other type of manslaughter defined by Nebraska law is a killing that is unintentional during the commission of an unlawful act.

Unknown Speaker: All right. Now, is it... is it not possible that on the facts of this case, they could have found that there was a killing that was unintentional in the course of a sexual assault?

Mr. Stenberg: Yes, Your Honor, but--

Unknown Speaker: And... and is it not also true that in order to find him guilty... what they did find him guilty of, they had to find some additional elements?

Mr. Stenberg: --No, Your Honor.

What you just described would be identical to... to the felony murder.

To... to convict a felony murder, you need a first degree sexual assault and a killing in the perpetration of that.

So if... if... if the unlawful act we're talking about is first degree sexual assault, they're identical offenses.

So you either have to convict of both or acquit of both.

And of course, before you get a... a lesser included--

Unknown Speaker: You say the two offenses are identical; one carries the death penalty and the other carries a very minor penalty.

Mr. Stenberg: --Well, Your Honor, that... I think... I think that probably gets to part of the... part of the reason, perhaps, the Nebraska Supreme Court does not regard it as a lesser included offense.

Unknown Speaker: Well, it would seem to be almost a fortiori under Beck that if the two offenses are identical, but one carries a lesser penalty, that that should be instructive.

It seems to me that's an even easier case than Beck.

Mr. Stenberg: No, I don't think so.

I don't think so at all, Your Honor.

Because, in that case, the jury could simply pick one or the other, with no standards to guide its... to guide its decision.

It would not--

Unknown Speaker: Well, it knows that one is less serious than the other.

That's the whole point of Beck.

Mr. Stenberg: --Well, but if they have the same identical elements, Your Honor, and the jury follows its instructions, it could not logically acquit of the greater and convict of the lesser.

And before an instruction would be given in Nebraska, or in most courts, the possib... one of the... the rationale is that there must be evidence on which the jury could acquit of the greater offense and still convict of the lesser.

Unknown Speaker: No, but doesn't--

--Will you... you tell us again, are you... am I right in thinking that there are two offenses in Nebraska which have exactly the same elements, and one carries a... a possible death penalty and the other carries a very small sentence?

Mr. Stenberg: They only have the same elements, Your Honor, if we set aside the... the 100 years of Nebraska jurisprudence and... and... and say that... try and say that... that manslaughter is the lesser included offense of felony murder.

Unknown Speaker: No, but what is the difference... what is difference in the elements?

Maybe I misunderstood your answer to Justice Stevens.

But I thought part of your answer was that in fact his hypothesis really was not posing a difference offense.

Mr. Stenberg: Exact... well, let's--

Unknown Speaker: Okay.

So that the elements... I... I mean, I took that as meaning that the... that the elements of the involuntary manslaughter, where a sexual assault was involved, is the same as the elements for felony murder, where a sexual assault is involved.

Are... is... are those identical in your view?

Is that what you're telling us?

Mr. Stenberg: --On an elements... not in the view of the Nebraska Supreme Court.

Based on an--

Unknown Speaker: No, but on an elements or not.

Mr. Stenberg: --elements... on an elements test, if the underlying felony is first degree sexual assault, then yes, manslaughter and... and felony murder would be the same offense.

You would have to prove--

Unknown Speaker: So a prosecutor... so a prosecutor could have charged either one?

Mr. Stenberg: --Oh, sure.

The prosecutor could have charged--

Unknown Speaker: No, but you said I've got... I've got... I've got an offense consisting of the following elements here.

And I can either go for the death penalty or I can go for a... a... a lowlevel criminal offense with a couple of years.

He could have made that decision?

Mr. Stenberg: --Well, I suppose that's always true.

Unknown Speaker: Yeah.

Mr. Stenberg: I suppose the prosecutor could have charged on trespassing or... or indecent--

Unknown Speaker: No.

But in that case, the... the prosecutor is charging different elements.

Here he's charging on your... as I understand you, exactly the same elements.

So he can say, gee, we'll either hang a person or... or give them a couple of years in... in prison.

Mr. Stenberg: --Well, I think that's the same prosecute... prosecutorial discretion that exists in any... in any criminal case.

This doesn't--

Unknown Speaker: But isn't... doesn't that raise the... because of that... that enormous disparity, doesn't that raise the... an even worse problem that... that Beck was concerned with?

Mr. Stenberg: --I don't think so, Your Honor.

Because the jury would either have to convict of both of acquit of both.

Unknown Speaker: I suppose you would say, too, that the prosecutor could have charged simple assault, because that element was there, although the prosecutor had enough evidence to charge considerably more than that?

Well--

--He can also suggest that the jury can act in an inconsistent way.

And there's no constitutional objection to doing that.

There's nothing that would have prevented the jury from returning not guilty on one and guilty on the other?

Mr. Stenberg: Well, it seems to me, Your Honor, that this... that this Court's jurisprudence would... would prohibit placing before the jury two identical offenses with the same elements and the same--

Unknown Speaker: But they don't have to be identical.

Couldn't it be--

--What... what... what is your authority for that?

Mr. Stenberg: --Well, really, Your Honor, the Furman and the whole line... it would be arbit... it would allow the jury to arbitrarily and capriciously choose between felony murder and manslaughter, with no standards whatsoever to guide its judgment.

Unknown Speaker: So... so you say there's a con... there would be a constitutional violation if the prosecution in this case indicted for both offenses?

Mr. Stenberg: No, Your Honor, I didn't.

Well, potential... potentially there would... there could have been a problem if... yes, potentially there could be a constitutional problem in that event, yes, sir.

Unknown Speaker: General, it seems to me... may I go back to Justice Stevens' question.

Because I think the... the question that Justice Stevens was asking probably is the same as the one that I... I've been asking.

And that is, simply based on an analysis of the elements, isn't there, under a Nebraska law, a lesser included offense here of involuntary manslaughter when the elements of involuntary manslaughter consist of an unintentional killing together with a second degree sexual assault?

Because it... it... it has... it has... it... it is distinguished from the charge in this case in the following way In this case, the charge was killing in the course of first degree sexual assault or attempted first degree sexual assault.

And in order to prove first degree sexual assault you had to prove penetration.

And in order to... to prove the... the attempt, you had to prove an intended penetration.

Under the second degree sexual assault, you don't have to prove penetration.

So why isn't the unintended killing in the course of committing a second degree sexual assault lesser included just based on the analysis of elements?

Mr. Stenberg: Well, I... I've tried to answer that question earlier, Your Honor, by... by pointing out that they're both class III felonies, and it would make no... if the prosecutor could already prove second degree sexual assault, it adds nothing to prove--

Unknown Speaker: And in felony murder, intent is... to kill... is irrelevant, as I understand it.

Mr. Stenberg: That's exactly my point, Your Honor.

Yes.

That's exactly it.

Unknown Speaker: Well, but--

Mr. Stenberg: That's exactly why second degree murder and manslaughter are not lesser included offenses of felony murder.

Unknown Speaker: --There is one thing I've tried to look up that I have not been able to find, which to me is important as a matter of Nebraska law.

It says in a case called State v. Price that the State cannot refuse a request for an instruction in a capital felony murder case where the defendant wants to insist that there be a showing of intent or reckless indifference to the value of human life.

I'm trying to think up, in a capital case, a capital felony murder case, because of this Court's jurisprudence, Nebraska has said that the defendant is entitled to an instruction that there has to be some showing of either intent or reckless indifference to human life.

Mr. Stenberg: I think, Your Honor, that may refer to the... to the eligibility phase, if I'm not mistaken, but I'd have to--

Unknown Speaker: And that's not something that goes to the jury in... in the guilt phase?

Mr. Stenberg: --That's correct.

That's my understanding.

Unknown Speaker: Under Enmund v. Florida, you don't have to have an intent to kill?

Mr. Stenberg: You do at the... you do at the eligibility phase, not at the guilt phase.

Unknown Speaker: And... and... thank you.

Mr. Stenberg: If I could reserve--

Unknown Speaker: One last thing I'd like to know, the State did not raise the Teaguebarred argument in the courts below?

Mr. Stenberg: --Well, there was really no--

Unknown Speaker: Yes or no.

Mr. Stenberg: --No, Your Honor, we did not.

Unknown Speaker: And it was raised for the first time in the petition for certiorari?

Mr. Stenberg: That is correct, Your Honor.

Unknown Speaker: And does that give us, in your view, discretion whether to address that or not?

Mr. Stenberg: That is my understanding of this Court's jurisprudence.

And may I reserve the rest of my time for rebuttal?

Unknown Speaker: Yes, you may, General.

Mr. McLeese, we'll hear from you.

Argument of Roy W. McLeese

Mr. McLeese: Mr. Chief Justice, and may it please the Court--

The ruling of the Eighth Circuit in this case reflects two critical errors of law.

First, that a State can never rely on its own law as a basis for denying a lesser offense instruction in a capital case, and, second, that this Court's decisions in Tyson and Enmund are relevant to the question of whether such instructions are constitutionally required under Beck.

As to the first error, this Court's decisions in Hopper and Spaziano made clear that a State may decline to give lesser offense instructions in a capital case based on the application of State law principles, such as the requirement that there be evidence to support the giving of those lesser offense instructions or that the lesser offenses be... be available as a matter of State statute of limitations law.

And it is surely reasonable for State courts to decline to give lesser offense instructions on offenses that are not necessarily included in the charged offenses... what might be called lesser unincluded offenses.

A requirement... a constitutional requirement that State courts instruct on such offenses would be utterly unworkable.

As this Court's decisions in Dixon and Schmuck have made clear, there is no logical limiting principal upon the idea of instructing juries on lesser unincluded offenses.

There is no limiting principle, once you get into that form of analysis.

Moreover, given criminal defendants the right to inject into criminal trials new offenses--

Unknown Speaker: What do you mean by lesser unincluded offenses?

Mr. McLeese: --I mean, for example, to take the clearer of the two, second degree murder under Nebraska law.

Second degree murder under Nebraska law requires proof of intent to kill.

Felony murder does not, under the elements tests, as... as the Federal courts would apply it or as the Nebraska courts have applied it.

It is quite clear that that is a lesser unincluded offense.

It's lesser, but it has elements which are different from--

Unknown Speaker: Well, what about the... the manslaughter charge that... the questions being asked... addressed here this morning?

Mr. McLeese: --Involuntary manslaughter, under Nebraska law... the Nebraska courts have said for 100 years that it... it and manslaughter generally are not lesser included offenses.

They have never, so far as I'm aware, been confronted with a specific claim, focusing on unlawful act manslaughter.

So they've never addressed that question.

And I think that raises real issues of--

Unknown Speaker: But could I interrupt with just onequestion.

Supposing you have two offenses that... one of which has three elements and the other has two of those three, and that's all you know about.

And Nebraska, as a matter of State law, says, well, we're not going to call that a lesser included offense.

Would Beck apply in that kind of situation?

Mr. McLeese: --I... I think that that poses the question of whether Beck brings with it the federally constitutionally required imposition of an elements test as the Federal courts apply it.

Unknown Speaker: My question is, in your view, could the State court say, well, we agree that... that the capital offense has three elements in it and we also agree that the... some other offense has only two of those elements in it, and otherwise they're exactly the same.

But as a matter of State law, we will not treat that as a lesser included offense.

Could they do that?

Mr. McLeese: I think it would be an extension of Beck and, therefore, a new rule for this Court to constitutionalize the elements test.

And, therefore, I think Beck itself does not establish the proposition that a State would be obliged to submit el... a lesser offense--

Unknown Speaker: But that still isn't my question.

My question is what is your view as to whether the State could do that?

Mr. McLeese: --Such a rule would not have a... a substantial impact on Federal prosecutions.

We adhere to--

Unknown Speaker: You'd rather not answer the question is what you're saying?

Mr. McLeese: --No.

I think I am... I think it's different--

Unknown Speaker: It's different from Beck, I agree.

It's different from Beck, clearly.

But I'm just asking you whether the rationale of Beck would apply squarely to that situation or not.

Mr. McLeese: --I think it would be unwise for the Court to take the step of reading Beck as imposing an elements test as a matter of Federal constitutional law.

So the answer, in essence, is no, I don't think that Beck requires the conclusion that State courts are obliged to submit any lesser that would be a lesser offense under the elements test under Federal law.

Unknown Speaker: Mr. McLeese, you say that the Supreme Court of Nebraska has never had to confront the question raised here.

One would have thought they would have had to confront it in the direct appeal in this case.

Mr. McLeese: Had... had... had Respondent framed this issue for the Nebraska courts, they ought to have.

But Respondent did not.

I think the--

Unknown Speaker: So Respondent never raised this issue in the Supreme Court of Nebraska?

Mr. McLeese: --Respondent, so far as I'm aware, has never suggested, until this Court... in fact, it's never been suggested by anyone until this Court... that if you apply an elements test, involuntary manslaughter, unlawful act manslaughter, is not a lesser... is a lesser included offense.

They never mentioned that theory at all.

All they did is... and in the joint appendix, at 30, is where there's the instruction which they proposed.

It did refer to unlawful act manslaughter as one of the alternative lessers that... that they sought to get.

But when they were explaining to the trial court why they were entitled to defense instructions on second degree murder and manslaughter, at no point did they focus on involuntary act manslaughter, did they suggest that under an elements test it would be a lesser, did they suggest that there was any particular unlawful act that would be appropriate in this particular case.

Those issues were never confronted, so far as I'm aware, until... in Respondent's brief in this Court.

Unknown Speaker: Not even in the Eighth Circuit?

Mr. McLeese: No.

And the Eighth Circuit's analysis, again, is completely different.

The analysis of the Eighth Circuit is that it is irrelevant to the Beck question whether these would be lesser included offenses or not.

And that's the ruling that we sought to participate, because we object to it and because it would have a substantial impact on Federal prosecution.

That ruling, which would constitutionalize a lesser unincluded offense doctrine that this Court... this Court has repudiated in Schmuck and in Dixon, is entirely untenable.

I... I should try to mention one thing about Nebraska law, although I don't profess to expertise in it.

I think that there is at least one possible respect... again, I'm speculating, because Nebraska has never confronted this question... in which involuntary act manslaughter might not be a lesser included offense even on an elements test.

If you look at the statute which defines unlawful act manslaughter, it requires... it appears to require that the murder in fact be unintentional rather than... rather than intentional.

If, as there is some suggestion in Nebraska law, that that's an element of the offense, that you can't have an intentional killing that would be an involuntary manslaughter, then they are not greater and lesser.

Because I could commit a felony murder through an intentional killing in the course of a felony that would not be eligible for treatment as an involuntary manslaughter.

Unknown Speaker: But... but the intent here is... is a little difficult.

As I understand it, second degree murder was not charged because there was no intent.

And yet when they get to the death eligibility phase, they have to say there's intent to comply with Edmunds.

It seems to me... I don't understand the consistency of that position.

Mr. McLeese: Second degree murder was not a lesser included offense because it requires an intent to kill.

Now, Tyson and Enmund do not require at any phase of the proceedings a determination that the defendant intended to kill.

What they require... what they clearly require is that with respect to someone who is not the actual killer... not this situation, by the way... that there be some culpable state shown with respect to the killing, and at least... well, some culpable state--

Unknown Speaker: So that if you're the actual killer under Edmund, the intent to kill need not be shown?

Mr. McLeese: --The lower courts have taken that view of Enmund.

But the other problem with the reliance upon Enmund as affecting the Beck analysis is that this Court, in Cabana, made very clear that that's not a determination that is relevant to the State's power to define the elements of capital offenses.

It is a determination that is relevant solely at the time of sentencing to determine whether or not a capital sentence can in fact be imposed.

And so it... I don't... I think it's--

Unknown Speaker: Well, it still seems to me, then, the State is having it both ways.

Mr. McLeese: --Again, I don't believe so.

There are many aspects of capital sentencing that may or may not be... may arise in the sentencing proceedings that the State is not obliged to affirmatively establish at the time of the... the trial.

And, again, it's important that, even on the broadest reading of Tyson and Enmund, there is no requirement of a showing of actual intent to kill as opposed to a far less demanding culpable state.

So I don't think it's correct to say that there is anything close to a direct tension, leaving aside the procedural differences between the Tyson/Enmund line of cases and the State's approach to the definition of felony murder or its... of lesser grades of homicide.

But just to complete the thought about Nebraska law and why it may well be the case under Nebraska law that involuntary manslaughter is not a lesser included offense even under an elements test.

In a case cited in Respondent's brief, the AlZubaidy case, which I think is reported at 559, Northwest 2d, the Nebraska Court of Appeals held that in fact there's no such thing as attempted involuntary manslaughter.

And when it said that, it said because attempt carries with it the idea that you are intending to commit the offense in question.

And involuntary manslaughter has a constituted feature of it that it is an unintentional killing.

And that mode of analysis, if applied here, I think would strongly suggest that in fact applying an elements test, that involuntary manslaughter is not a lesser included offense.

Unknown Speaker: May I go back to Justice Kennedy's question for just a moment.

Isn't it correct that the 100 years of jurisprudence in Nebraska about felony murder not having any lesser included offenses all turns on the fact that there's no intent element even as comparable to that in Tyson and Enmund?

Mr. McLeese: Yes.

Unknown Speaker: That's the missing element of all this?

Mr. McLeese: Yes.

Yes.

Unknown Speaker: And if constitutionally there must be such... some sort of intent in order to justify the death penalty, why is it such a stretch to say that we'll treat it as a lesser included offense in regard to what the total proof that the State must offer is?

Mr. McLeese: This Court, in Cabana, made clear that that principle, that at least with people who are not the actual killers, there may be a requirement of culpable mental state, is not one that affects the power of the State to define the elements of the offense.

It's purely a sentencing issue and therefore should not affect the Beck analysis.

Unknown Speaker: Thank you, Mr. McLeese.

Ms. Hutchinson, we'll hear from you.

Argument of Paula Hutchinson

Mr. Hutchinson: Thank you, Mr. Chief Justice, and may it please the Court--

The one undeniable thing about this case is that the enhanced risk of an unwarranted conviction was created when the prosecutor elected to charge in the information felony murder only and nothing else, putting the jury in the position of deciding whether to convict him, of its only choice, or to set him free.

Unknown Speaker: Of course, a State can do that.

I mean, you... you... you don't deny that a State can do that by simply establishing crimes that don't... a capital crime that has no lesser included offense, however you want to define it... by elements, by facts, whatever... a State can do that, can't it?

Mr. Hutchinson: No, Your Honor--

Unknown Speaker: A State... a State cannot set up its crimes in such a way that you have one capital crime which has no lesser included offense?

Unknown Speaker: What... what if the State were to say that intentional murder, committed by way of poisoning is a capital offense, and do... do you say you would... and they would have to give some lesser included offense in... in connection with that?

Mr. Hutchinson: Well, only if the facts would support the giving of some lesser that's otherwise allowed under the law.

And--

Unknown Speaker: Well, supposing there was an offense called adulterating one's drink, and... would you have to charge that if the evidence showed the person put strychnine in... in the thing and the person... the victim took it and was dead?

Mr. Hutchinson: --If the evidence would support the giving of something less than a capital crime--

Unknown Speaker: Well, okay, but let's... let's talk for a minute about what sort of evidence would support the ev... the giving of something.

Supposing that the evidence showed that the... the defendant, in my case put poison in the... in the... in the cup, the victim... intended the victim drink the cup, the victim drank it and died.

Now, would you say that a lesser included offense would... would be given then, had to be given?

Mr. Hutchinson: --If all those elements could be proven from the facts and there is no rational theory to support something lesser, then it wouldn't be necessary to give a lesser.

If there was some question as to any of the elements, if there were a statute that... that... that would have supported the giving of lesser, and there was at least some evidence, then Beck would say no, you may not charge him only with that.

Unknown Speaker: Well, in this--

Mr. Hutchinson: But if there's no evidence to support that--

Unknown Speaker: --in... supposing we take the facts of this case.

Would... would the State have been required to charge on simple assault, since they're obviously was a simple assault, even though the evidence showed that it went much further?

Mr. Hutchinson: --The State would not have been required to charge on simple assault, Your Honor.

I think Schad makes clear that the defendant isn't entitled to have the jury select from a menu of... of lessers.

What Beck teaches is that if the evidence is clear that the defendant is guilty of some violent offense that some lesser offense that's otherwise allowable under State law be given.

Unknown Speaker: Why does it have to be a violent offense?

Mr. Hutchinson: Because Beck says it's so, Your Honor.

Unknown Speaker: And why do you think Beck said that?

Mr. Hutchinson: Because if it's something less than a violent offense, then that wouldn't address the issue that's at the heart of Beck.

And that's whether there's a distortion in the factfinding process that... that causes the jury to say, well, he's... he's obviously guilty of some serious crime, some serious violent crime; we can't just let him walk out of the courtroom a free man.

Which is what the jury was told in this case.

And--

Unknown Speaker: This... no, I thought you were done.

Go ahead.

Mr. Hutchinson: --Oh, no, Your Honor... and if... if, as happened in the State of Nebraska, the State erects some artificial barrier to the giving of a lesser offense that would be supported by the facts, then Beck says that due process doesn't allow that.

Assume for the sake of argument, as... as some of our questions at least have suggested, that involuntary manslaughter, where the underlying act is... is second degree sexual assault, would be a lesser included offense just as an analytical matter.

Assume that to be the case.

The defense that... that you've raised, as I understand it, is... is an alternative defense of diminished capacity, or insanity, either... either of which, as I understand it, would... would be a complete defense under Nebraska law.

Is there any lesser included offense... and specifically, is... if involuntary manslaughter is a lesser included offense, could a jury rationally, on your theory of defense, acquit a felony murder and convict of... of the involuntary manslaughter?

Mr. Hutchinson: Your Honor, before I answer that, I really have to correct a few of the misperceptions created by the United States about Nebraska law.

And one of them is that there's such a crime as involuntary manslaughter under Nebraska law.

State v. Jones, which we cite in our brief, says that the terms "voluntary" and "involuntary manslaughter" have not been a part of Nebraska law for many, many years.

Manslaughter is committed without regard to intent, either upon a sudden quarrel or during the commission of an unlawful act.

There's no distinction between voluntary and involuntary manslaughter.

Unknown Speaker: Okay.

Well, strike the adjective, then, "involuntary".

I take it there is a Nebraska offense of unintended killing in the course of committing an unlawful act, and that an unlawful act might be second degree sexual assault; is that correct?

Mr. Hutchinson: Yes, Your Honor, killing without--

Unknown Speaker: All right.

Well, let's... let's... I'm sorry.

Mr. Hutchinson: --killing without regard to intent in the course of committing an unlawful act, which Nebraska statutes say don't need to be specified... second degree sexual assault would be one.

But--

Unknown Speaker: Well, now--

--Okay--

--the defendant did not ask for an instruction on sexual assault as a lesser included offense, did he?

Mr. Hutchinson: --He didn't ask for an instruction on sexual assault as a lesser included offense.

He asked for an instruction on manslaughter under either theory of manslaughter.

And the unlawful act is not required to be specified under Nebraska law.

The information can charge killing and slaying in the course of an unlawful act.

And the information does not need to specify the unlawful act.

Unknown Speaker: Okay.

Going back to my question, could they... on... on the theory, as I understand it, the only theory of defense that was raised... could a jury rationally have acquitted of the offense charged here and... and then convicted of... of manslaughter as you have just explained it to us?

Mr. Hutchinson: They most certainly could have, Your Honor, and for several reasons.

First of all, you mentioned the affirmative defenses that were advanced by the defendant.

Well, since he raised the defense of insanity at the time the State was required to prove him sane beyond a reasonable doubt... but, more importantly, he argued to the jury... and you find this in counsel's closing argument... that there was insufficient evidence to find proof beyond a reasonable doubt that a first degree sexual assault or an attempt of that was committed.

And--

Unknown Speaker: So you're saying he didn't just rest on... on the capacity/insanity defense, then?

Mr. Hutchinson: --That's correct, Your Honor.

Unknown Speaker: Okay.

Now, let me ask you, then, a different question.

Would it have been rational for a jury to say he did not... we find that he did not commit either first degree sexual assault that involves penetration or attempted first degree sexual assault, but we find that he did commit second degree sexual assault.

Would that have rationally been possible?

Mr. Hutchinson: It most certainly would have, Your Honor.

In fact, that's an entirely plausible--

Unknown Speaker: I guess what I'm getting at is the... is the... is the possible inconsistency between saying there was no intent to commit the assault involving penetration, but there was an intent to commit second degree assault.

Can... is... is second degree sexual assault capable of being committed not only without penetration, but without intent to commit penetration?

That's what I'm getting at.

Mr. Hutchinson: --Certainly it can, Your Honor.

And... and--

Unknown Speaker: Don't tell me--

Mr. Hutchinson: --first degree sexual assault and second degree sexual assault... and second degree murder, for that matter... all are general intent crimes.

And it's entirely consistent with his defense and with the evidence in this case that, number one, there was scant physical evidence, if any... there was only some circumstantial evidence... that an actual first degree sexual assault occurred.

That leaves you with attempted first degree sexual assault, which is a specific intent crime.

And the jury would have been required to find that he formed the intent to engage in behavior, which, under the circumstances he believed them to be, constituted a substantial step toward the committing of first degree sexual assault.

Which is certainly a great deal more sophisticated level of intent than that required by a general intent crime.

So under the evidence and under his defense, he could have been found guilty of... of manslaughter unlawful act, with a second degree sexual assault, and the jury could have found that while he didn't have the sophisticated level of intent, based on his gross intoxication, to form the intent required to attempt, and because there was such little evidence of an actual first degree sexual assault, that it certainly would have been rational for the jury to have found him guilty of unlawful act manslaughter, with the unlawful act being second degree sexual assault.

Unknown Speaker: --Was this the reasoning of the Eighth Circuit in this case?

Mr. Hutchinson: Your Honor, the... yes, the Eighth Circuit--

Unknown Speaker: I... I... I had thought it wasn't.

Perhaps you could explain.

Mr. Hutchinson: --It's on page 60 of the JA.

The Eighth Circuit, contrary to what the United States argued on brief, said the facts would have supported conviction either on second degree murder or on manslaughter.

That's--

Unknown Speaker: But was there any homing in on this unlawful act manslaughter?

See, when I read the Eighth Circuit's decision, I thought that they were speaking of two intent crimes, like the sudden quarrel, and the second degree murder, both.

And I thought that that... that they were saying if there is anything that you can charge other than the capital, then you must.

But I didn't see them homing in at all on the unlawful act manslaughter.

Mr. Hutchinson: --No, they didn't discuss the specifics.

What they made was a blanket statement, saying the facts would have supported conviction on either second degree murder or manslaughter.

And it's true, as you said, Justice Ginsburg, that... that the Eighth Circuit said that... that if the facts would have warranted, then he should have been instructed on lessers.

And that's certainly true under Nebraska law.

Nebraska has erected this artificial barrier to the giving of lesser offenses that's found nowhere else in... in homicide law in Nebraska.

Unknown Speaker: But my... my question still is I didn't see it in the Eighth Circuit opinion.

And I think Mr. McLeese told us it was never presented squarely to the Nebraska courts.

This... the difference between an intent to kill, which second degree murder would involve, and a crime, manslaughter, unintentional manslaughter, that doesn't involve any intent.

Mr. Hutchinson: Your Honor, I briefed to the Eighth Circuit Court of Appeals a scenario whereby, under the... the cognate evidence test, which was in effect at the time Mr. Reeves was tried, or under the statutory elements test that... that Mr. Reeves could have been convicted of the very least, under the statutory elements test, of manslaughter, unlawful act, with the unlawful act being a sexual assault.

And those briefs, I assume, are part of the record.

Unknown Speaker: Did you brief the same thing to the Supreme Court of Nebraska?

Mr. Hutchinson: That was briefed to the Supreme Court of Nebraska, yes.

It was... the--

Unknown Speaker: The distinction between the unlawful act and the intent crimes?

Unknown Speaker: I... I wasn't so much asking... you mean addressed in the briefs?

Or do you mean addressed by the court?

Mr. Hutchinson: --No, addressed in the briefs.

Unknown Speaker: Addressed in the briefs.

Mr. Hutchinson: I don't recall whether they were specifically addressed in the briefs.

But one thing I do know for certain... that every stage of this case, from pretrial onward, the court was pressed that the jury should have been instructed, under Nebraska law and under Beck v. Alabama, on the lesser included offenses, the second degree murder and either theory of manslaughter.

The term "lesser included offense", Beck doesn't seem to turn on the... the semantics of... of what constitutes a lesser included offense.

Unknown Speaker: It's conceded that you could have asked for sexual assault as a lesser included offense, but you didn't ask for that one?

Mr. Hutchinson: We could have, but it wasn't necessary.

When... when defense counsel asked for an instruction on manslaughter, again, statute says... it's 29-1512, under Nebraska law... that the unlawful act not be specified in the information.

And so it was sufficient to argue that... to request that a manslaughter instruction be given on either theory.

And the State--

Unknown Speaker: Well, it may not have to be specified in the information, but I presume you have to explain to the trial judge what the predicate is for your request for the instruction?

Mr. Hutchinson: --Well, Justice Souter, the State has never suggested that there's an inadequate basis, based on the requests that were made by counsel, in order to have been given an instruction like that.

I think the court pressed with... with... with all deliberate zeal to get instructions on lesser offenses as were allowed under State law.

Unknown Speaker: But there's nothing in the record, is there, that suggests the lawyer ever said to the judge,

"Judge, the reason I want a manslaughter instruction is because first degree murder makes it first degree if it's a first degree sexual offense. "

"But maybe here there was a second degree sexual offense. "

"And that's why, since if it's only in the second degree, it doesn't fall within the first degree murder statute. "

"That's why I want the lesser included instruction. "

I haven't found a word that suggests anything like that.

Mr. Hutchinson: Defense counsel argued--

Unknown Speaker: I thought he was making a different argument.

I thought his argument was, look at the language of first degree, what the legislature has done is it has taken six crimes and say, if you commit any of those six crimes and somebody dies, that's first degree murder.

Now, look at the language of the manslaughter statute.

You might think that manslaughter is if somebody dies in any other crime... any other than the six... it's manslaughter.

You might think that's the law in Nebraska.

But the language of manslaughter covers those six crimes, too.

And that's why I want the offense.

I mean, I do not know any other argument he could have been making.

Mr. Hutchinson: --Justice Breyer, the argument that he was making is that, under Nebraska law since Statehood, the rule has been homicide is but one offense, the degree necessarily being for the jury.

And when there's at least some evidence to warrant the giving of lesser offenses to first degree murder, that they shall be so instructed and that it's for the jury to determine which degree of homicide.

Unknown Speaker: But you're speaking generally, and I'm trying to understand whether there is anything in the record which would say to the judge,

"Judge, I want a manslaughter instruction because the evidence suggests that my client didn't commit first degree sexual assault. "

"I want a manslaughter instruction because he certainly could have been guilty of.... "

Unknown Speaker: --So what is in Beck or in logic or anything else that says if man... if Nebraska wants to say this,

"People of Nebraska, if you commit one of six crimes and somebody dies, that's first degree murder; if you commit any other crime other than those six and somebody dies, that's manslaughter. "

Is there anything in the Constitution that would stop Nebraska from saying that?

I think the answer is no.

And then my question is, well, how is this any different?

Mr. Hutchinson: Because the facts would have supported the giving of lessers.

And it's clear from the evidence... defense counsel argued to the jury that a penetration didn't occur and that it was because of his intoxication it was impossible to find that there was an attempt involved.

But given the fact that the jury had sat through a 6-week trial, hearing the grizzly details of the crimes, after the defendant had stipulated to the fact that he caused these two homicides, it's... it's certainly plausible that the jury was going to focus on anything but, do we set him free or do we examine the forensic evidence and say, well, the acid phosphatase level in the victim's genitalia might or might not have been consistent with intercourse, and there's nothing... nothing to have said that a... a penetration was effected as far as physical evidence.

Of course, they weren't talking like that.

They were saying, we can't... we can't let this man walk out of here.

The jury was instructed prior to argument, among the last words the jury heard before it retired to deliberate was the prosecutor telling the jury,

"If the State doesn't prove its case beyond a reasonable doubt, the State doesn't win and he walks out of this courtroom a free man. "

That's Beck, plain and simple.

That's what Beck says you can't do when there was evidence to support the giving of lessers.

He could have been convicted of second degree murder, as General Stenberg conceded.

The evidence certainly could have suggested that he effected an intentional killing.

There was scant evidence of... of first degree sexual assault.

But the jury--

Unknown Speaker: How do you define... how do you define, and under what body of law, lesser included offense?

I mean, we've heard an argument from the United States that it can't mean anything the prosecutor might have charged.

Do you agree with that, as far as that much?

That it's... it's not anything, given this episode that the prosecutor might have charged?

Mr. Hutchinson: --No.

And, Justice Ginsburg, Beck makes clear... and Schad certainly makes even more clear... that that's not required, that we don't throw at the jury--

Unknown Speaker: So what is... what is a lesser included offense?

It's not anything the prosecutor could have charged.

So it's something less than that universe.

So what is it?

Mr. Hutchinson: --Well, under Nebraska law, the... the common law at the time that was in effect was the evidence rule.

If the evidence would have supported the giving of lessers, the... the State has... as the State put it, experimented, and it takes us, I believe, a couple of pages on brief, I think on pages 31 and 32, to recount the experiment with which lesser included offense test it's going to adopt.

But for homicide, the rule in Nebraska always has been that we're not constrained by the semantics of lesser included offense doctrine.

Homicide is one offense.

And that has been the rule in Nebraska... it was... sense... prior to Statehood.

In fact, it dates back to the 1794 statute that--

Unknown Speaker: But we had a concession... we had a concession from General Stenberg that sexual assault in this very case would have been a lesser included offense, but you didn't ask for it.

Mr. Hutchinson: --Again, Your Honor, it... second degree sexual assault may not have been specifically requested.

But the law in Nebraska that... is that the unlawful act not be specified.

The--

Unknown Speaker: I'm not talking about unlawful act manslaughter.

I'm talking about sexual assault pure and simple.

The... we have just been told that under Nebraska law, sexual assault... not unintentional killing in the course of, but just sexual assault--

Mr. Hutchinson: --Yes.

Unknown Speaker: --would have been a lesser included offense.

Mr. Hutchinson: First--

Unknown Speaker: So that suggests that there are lesser included offenses--

Mr. Hutchinson: --Yes.

Unknown Speaker: --when the charge is felony murder.

Mr. Hutchinson: Yes.

First degree sexual assault would have been a lesser included offense of felony murder.

And it's true that defense did not request that.

The reason they didn't request that was because it would have been inconsistent with their defense that a first degree sexual assault never occurred.

If the trial court felt strongly that this was one crime, uno actu, and that it was a felony murder, the killing being a first degree sexual assault, the rule in Nebraska is it's the judge's duty to instruct the jury on the law, whether requested to do so or not.

And the Nebraska Supreme Court routinely takes up on... under the plain error doctrine, cases where the trial... where the trial court did not properly instruct the jury as to the law of the case.

And--

Unknown Speaker: You mean that a defendant, even who doesn't want a lesser included offense, has to get that charge, even--

Mr. Hutchinson: --Absolutely.

Unknown Speaker: --even if he doesn't want it and the prosecutor doesn't want it?

Mr. Hutchinson: Absolutely, Your Honor.

In fact, there is a case that we cite, State v. Archibald, where precisely that happened.

The defendant did not want a manslaughter instruction in her affirmative defense of selfdefense.

The trial court felt that her own testimony adduced sufficient evidence to charge the jury with manslaughter.

She objected.

The prosecution didn't request it.

The court instructed the jury anyway because... because the law of Nebraska is that the jury shall get any el... or any degree of homicide upon which there's at least some evidence.

And it's the trial court's duty to instruct the jury on the law of the case.

That was upheld by the Nebraska Supreme Court on appeal.

So, again, the answer to your question is yes.

Unknown Speaker: I thought the question was, well, what is a lesser included offense?

A lesser included offense could be what Nebraska says it is, in which case you would lose, or it had some independent definition.

If it has an independent definition, I thought it was... and here is what I'm interested in your view on... take an offense.

I'm prepared to say at the moment... I'll look it up... but none of that stuff ever got into this case.

But I'll look it up.

But--

Mr. Hutchinson: --Well, and again, it was sufficient under State law for the defense simply to request a manslaughter instruction.

Under either theory, the evidence would have supported the giving of a manslaughter instruction.

But, Justice Breyer, you began your question with the premise that if... if a lesser included offense is only what the State says it is, we lose.

If that were true, well, then as the Eighth Circuit panel said, Beck would have been decided differently.

If State law is what it is, you lose.

Unknown Speaker: --Yeah, that's why I'm looking for the answer.

Mr. Hutchinson: So the question is, once a State has erected this artificial barrier by saying there's no lesser included offense, when our common sense tells us we can analyze the evidence or the elements, whichever... whichever we choose to do... and find that in fact there are, then we examine the universe of State law.

And--

Unknown Speaker: Had the State, in Beck, said that there was... that... had the State, in Beck, said that there was no lesser included offense, or had it said that there is a lesser included offense, but we don't care, we're not going to charge it?

There's no meaningful distinction between... between a State saying, for this crime there is no lesser included offense and a State saying there is one, but we're not going to allow it to be charged in a capital case?

I think there's a big distinction between the two.

Mr. Hutchinson: --Well, if the State says there is none, when it's quite obvious there is one, and other areas of Nebraska law require the giving of lessers without reliance upon lesser included offense analysis, there's no meaningful distinction.

It's an artifice.

Unknown Speaker: But when you say it's quite obvious that there is one, that depends on... on how you define lesser included offense, whether that's a Federal... a Federal concept... and there are some... some logical rules based upon the elements or upon what's proven at trial, or whether what's a lesser included offense depends on whatever the State says is a lesser included offense.

That's a conceivable thing, isn't it?

Mr. Hutchinson: Normally it is.

But in Nebraska we have the additional issue of this statute that says homicide is but one offense.

And in one case, State v. Vosler, they say we're not constrained by the traditional lesser included offense analysis when it comes to homicide because of 29-2027.

Unknown Speaker: Yes, but we've already gotten over that, because the... because the... General Stenberg said sexual assault is a lesser included offense, so it's not a situation, as in Beck, where you could not charge any lesser included offense.

The State there said, yes, it is a lesser included offense, but we have a statute that says, in murder cases, you don't... the concept is off the books in murder cases.

So there wasn't any quarrel about whether it was a lesser included offense.

Here that seems to be what this is all about, whether it is a lesser included offense.

Mr. Hutchinson: Well, the... the question in Beck, really, is the State allowed to erect some artificial barrier to the giving of lesser offenses when they otherwise would be allowable to State law?

There's a subset of homicide that's capital murder and a subset of that that's felony murder.

And... and here we don't give lessers, but everywhere else we do.

Manslaughter, under the traditional statutory elements test, can be considered a... a lesser included offense of second degree murder, but it's routinely given in homicide cases.

And the statutory rules of construction are the same in Nebraska as elsewhere.

Statutes are to be read in pari materia, and one not read so as to abrogate the other.

And in fact the... 2027 has been abrogated by this little wildcard in Nebraska law that says we don't instruct on lesser degrees of homicide when the offense charged is felony murder.

It's... it's... it's artificial and it's arbitrary.

And it creates the--

Unknown Speaker: Well, because we know... we know that the precise question before us has not been answered by the Nebraska Supreme Court, would it be appropriate to... to use their certification procedure to say this category, unintentional manslaughter, did you mean that you couldn't charge that, together with a felony, as a lesser included offense?

Why shouldn't the Nebraska Supreme Court be the first one to answer that precise question?